Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-18-624839-A
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Owen M. Patton, Assistant Prosecuting Attorney,
A Rein, for appellant.
JOURNAL ENTRY AND OPINION
RAYMOND C. HEADEN, J.
1} Defendant-appellant Herman R. Duncan
("Duncan") appeals from his sentence.
and Procedural History
2} The charges in this case stem from a January 5,
2018 incident at a bar in Bedford, Ohio. Duncan was dancing
with two women when a group of men came up to them on the
dance floor and a fight broke out. Duncan was beaten by these
men. He left the bar, went to his car to retrieve a gun, and
returned to fire a shot through the window of the bar toward
the dance floor.
3} On January 16, 2018, Duncan was indicted on two
counts of felonious assault and one count of having weapons
while under disability. Both felonious assault counts carried
repeat violent offender specifications and multiple firearm
specifications. Duncan pleaded not guilty to the indictment.
4} On May 2, 2018, a plea hearing was held. After
the trial court engaged Duncan in a plea colloquy pursuant to
Crim.R. 11, the court accepted Duncan's guilty plea to an
amended count of felonious assault with a three-year firearm
specification. The remaining counts and specifications were
dismissed, and Duncan was referred to the probation
department for a presentence investigation and report and to
the psychiatric department for a mitigation report.
On May 30, 2018, the trial court held a sentencing hearing.
The prosecutor, defense counsel, and Duncan each addressed
the court. The court sentenced Duncan to an aggregate prison
term of ten years, made up of seven years on the felonious
assault charge and three years on the firearm specification.
Duncan appeals his sentence, presenting one assignment of
error for our review.
6} In his sole assignment of error, Duncan argues
that the record clearly and convincingly fails to support the
imposition of more than a minimum sentence upon him.
7} Pursuant to R.C. 2953.08(G)(2), a reviewing court
may increase, reduce, or otherwise modify a felony sentence
if it clearly and convincingly finds that either (a) the
record does not support certain required statutory findings
or, (b) the sentence is otherwise contrary to law. A sentence
is contrary to law if the court fails to consider the
purposes and principles of felony sentencing set forth in
R.C. 2929.11 and the sentencing factors set forth in R.C.
8} R.C. 2929.11(A) establishes that the overriding
purposes of felony sentencing are to protect the public from
future crime by the offender and to punish the offender using
the minimum sanctions that the court determines will
accomplish those purposes. While sentencing courts have
discretion to determine how best to comply with these
purposes, RC. 2929.12 provides a list of factors that courts
must consider in felony sentencing. Courts must carefully
consider these purposes and factors, but "it is not
necessary for the trial court to articulate its consideration
of each individual factor as long as it is evident from the
record that the principles of sentencing were